Family and Medical Leave

It had become something of an unwritten tradition for employers to give employees time off (either paid or unpaid) to handle family sicknesses, births, adoptions, and medical emergencies. That is, until the passage of the Family and Medical Leave Act (FMLA).

Family leave is now mandated under the federal Family and Medical Leave Act. Only employers with 50 or more employees are subject to this law. In a nutshell, it requires that covered employers allow employees to take the equivalent of 12 weeks of unpaid leave each year due either to a birth or adoption of a child, or to attend to the serious health condition of an immediate family member or to the employee's own serious health condition.

What is a serious health condition? A serious health condition under the FMLA is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care (an overnight stay) in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with the inpatient care or continuing care by a health care provider that includes one or more of the following:

  1. A period of incapacity of more than three consecutive days.
  2. Any period of incapacity due to pregnancy or for prenatal care.
  3. Any period of incapacity or treatment due to a chronic serious health condition.
  4. A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective.
  5. Any period of absence to receive multiple treatments by a health care provider, including conditions that are not currently incapacitating but would be if left untreated.

The FMLA also requires that after the 12 weeks of unpaid leave, you must reinstate the employee in the same job or an equivalent one. Note that the leave does not have to be taken all at once; in some instances family leave can be taken one day at a time.

State law. While the small size of your business may exclude you from having to comply with federal family leave laws, a few states have family or medical leave laws that place requirements on private employers with fewer than 50 employees. If you are in one of these states, make sure that you understand and comply with the requirements of your state's family leave laws:

Colorado. Employer who permit maternity or paternity leaves for biological parents must make such time off available to adoptive parents.

District of Columbia. The family and medical leave law applies to any employer who employs 20 or more persons in the District. An employee is entitled to a total of 16 workweeks of family leave during any 24-month period for: (1) the birth of a child of the employee; (2) the placement of a child with the employee for adoption or foster care; (3) the placement of a child with the employee for whom the employee permanently assumes and discharges parental responsibility; or (4) the care of a family member (including a domestic partner or his or her dependent child) of the employee who has a serious health condition. Family leave may consist of unpaid leave, but any paid family, vacation, personal, or compensatory leave provided by an employer that the employee elects to use for family leave counts against the 16 workweeks of allowable family leave. Employees are also eligible for up to 16 weeks of leave in any 24-month period for their own serious health condition.

Louisiana. Employers of 20 or more employees must allow an employee up to 40 hours of paid leave to donate bone marrow.

Maine. Maine employers (private and public sector) of 25 or more employees are covered by the state family and medical leave law. Covered employers must provide eligible employees with unpaid family medical leave of up to 10 consecutive workweeks in any two years. Leave may be taken for the birth of a child, the adoption of a child 16 years old or younger, or the serious illness of the employee or a child, parent, or spouse or of the employee.

Massachusetts. Employers of six or more employees must allow employees 24 hours of leave in any 12-month period to accompany a son, daughter, or elderly relative to medical, dental, or nursing home interview appointments.

Minnesota. Employers with 21 or more persons at least one site must permit an employee who is a natural or adoptive parent to take up to six weeks' leave in connection with the birth or adoption of a child. An employee may also use personal sick leave benefits for absences due to illness or injury to the employee's child on the same terms the employee is able to use sick leave benefits for the employee's own illness or injury. Employers with one or more employees must permit up to 40 hours of paid leave to donate bone marrow.

New York. Employers with 20 or more employees at one site must permit a leave of up to 24 work hours to donate bone marrow.

Oregon. Oregon's family leave law applies only to employers that employ 25 or more persons in the state. Eligible employees are entitled to 12 weeks of unpaid leave within any one-year period. In addition, female employees may take a total of 12 weeks of leave within any one-year period for an illness, injury, or condition related to pregnancy or childbirth that disables the employee from performing any available job duties offered by the employer. An employee who takes 12 weeks of family leave within a one-year period for the birth of a child, adoption of a child under 18, or placement of a foster child under 18 may also take up to an additional 12 weeks of leave to care for a child of the employee who, though not suffering from a serious health condition, has an illness, injury, or condition that requires home care. Leave may also be taken (1) to care for a family member with a serious health condition or (2) to recover from or seek treatment for a serious health condition of the employee that renders the employee unable to perform at least one of the essential functions of the employee's regular position. Employers with one or more employees must allow up to 40 hours of leave to donate bone marrow.

South Carolina. Employers with at least 20 employees at one site must allow up to 40 hours of paid leave to an employee donating bone marrow.

Vermont. Vermont's parental leave law covers employers of 10 and its medical leave law covers employers of 15 or more. Covered employers must allow eligible employees to take up to 12 weeks during any 12-month period for unpaid parental or medical leave. Parental leave may be taken following the birth of the employee's child or within a year following the initial placement of a child 16 years of age or younger with the employee for adoption. Medical leave may be taken for the serious illness of the employee or the serious illness of the employee's child, stepchild or ward (living with the employee), foster child, parent, spouse, or parent of the employee's spouse. Also, employees may take unpaid leave of up to four hours in any 30-day period or up to 24 hours in any 12-month period to accompany a child or parent to medical, dental, or other professional appointments.

Washington. Any employee is entitled to 12 workweeks of family leave during any 24-month period to: (1) care for a newborn child or adopted child of the employee who is under the age of six at the time of placement for adoption; or (2) care for a child under 18 years old of the employee who has a terminal health condition. Family leave may be taken on a reduced leave schedule subject to the approval of the employer. An employer must allow an employee to use the employee's accrued sick leave to care for a child of the employee under the age of 18 with a health condition that requires treatment or supervision.

Some states require specific benefits for maternity, adoption, or parental leave situations.

While you may not be large enough to be required to provide medical or family leave under a state or federal law, you may choose to give employees some type of leave for these situations. You may choose to offer employees vacation time or personal time.